Ginger Labs Subscription Agreement

Last Updated: April 16, 2025

This Subscription Agreement (the “Agreement”) sets forth the terms and conditions between Customer (as defined in the paragraph below) and Ginger Labs, Inc. (“Ginger Labs”) which govern Customer’s access and use of the Services. The Agreement is effective as of the date that Customer submits an Order Form for the Services (the “Effective Date”).

By submitting an Order Form, accessing or using the Services, or clicking a box indicating your acceptance of this Agreement, you are creating a legally enforceable contract where you (together with the entity indicated on the Order Form or for which you use the Services, collectively, “Customer”) agree to be bound by all the terms and conditions of this Agreement. You represent and warrant that you have the authority to accept this Agreement on behalf of the Customer. If you do not agree with this Agreement, you/Customer are prohibited from accessing or using the Services. If you do not have the authority to act on behalf the Customer, or you intend to access the Services for personal use only, your use of the Services is governed by Ginger Labs’s Terms of Use instead.

  1. DEFINITIONS. Certain capitalized terms used herein are set forth below, and other terms shall have the respective meanings set forth elsewhere in this Agreement or the applicable Order Form.

    “Order Form” means either Ginger Labs’s online subscription or sign-up pages or a Ginger Labs ordering document, agreed to by both Customer and Ginger Labs that incorporates this Agreement.

    “Prohibited Data” means (a) protected health information or personal health data (e.g. medical records or an individual's health care claim information), (b) non-public, government-issued ID numbers (e.g. driver's license numbers, Social Security Numbers), (c) personal financial data or financial account numbers (e.g. account numbers for a personal debit card or credit card), (d) any personal information of children under 13 or the applicable age of digital consent, (e) any other data that (i) is classified as "sensitive," "special category" or a similar categorization under applicable data protection laws (e.g. the General Data Protection Regulation, the Health Insurance Portability and Accountability Act, Gramm-Leach-Bliley Act, or the Payment Card Industry Data Security Standards); (ii) constitutes criminal convictions data, or criminal offense data; or (iii) for which there is no consent from the applicable data subject for it to be submitted to Ginger Labs or processed through the Services.

    “Services” means Ginger Labs’s Notability application and services as subscribed by Customer on the applicable Order Form.

    “Subscription Term” means the period (e.g. monthly, annually) during which Customer has agreed to subscribe to the Services as set forth on the applicable Order Form.

    “Third Party Materials” means third party software, source code or technology licensed to Ginger Labs and made available to Customer.

    “User” means an employee of the Customer who is authorized by Customer to use the Services on behalf of the Customer, which shall be provisioned by Customer’s administrative User(s) of the Services.

  2. SUBSCRIPTION OF SERVICES.
    1. Subscription of Services and Restrictions.
      1. During the Subscription Term, and subject to Customer’s and each User’s compliance with the terms and conditions of this Agreement, Ginger Labs grants to each User a non-exclusive, non-transferable, non-sublicensable license to install on any User device used by User for work on behalf of Customer and allow use of the Services for Customer’s internal business purposes. Customer agrees that the Services is for Customer’s internal use (and not for resale or for the benefit of any third party).
      2. Customer will not (and will not allow any third party to): (a) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Services, including the proprietary configuration and components thereof (except and solely to the extent that such restrictions are prohibited by applicable statutory law); (b) modify, translate, or create derivative works based on the Services; (c) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to any Services; (d) use the Services for any benchmarking, timesharing or service bureau purposes or otherwise for the benefit of a third party; or (e) remove or otherwise alter any proprietary notices or labels from the Services or any portion thereof. Customer and Users will use the Services only in compliance with (i) the applicable Order Form and documentation, (ii) the rights granted hereunder, and (iii) in accordance with all applicable laws and regulations, including, but not limited to, laws related to privacy (whether applicable within the United States, the European Union, or otherwise), intellectual property, consumer protection, child protection, obscenity, and defamation. Customer shall not, and shall not permit any third party (including Users) to, submit to or store in Services any Prohibited Data, except for storage and processing on Users’ devices locally. Customer shall not (and shall not allow any third party to) access or use all or any part of the Services or Ginger Labs’ intellectual properties in order to build a product or service which replicates, competes with or is similar to the Services.
      3. Customer shall remain responsible for all Users’ access to and use of the Services, and be liable for any act or omission of any User in connection with the Services.
    2. Services Delivery and Installation. Ginger Labs will make the Services available for Customer to download from Apple's Business Manager. Customer is solely responsible for Users’ access to and installation and deployment of the Services on each such User’s device. Customer will also cooperate with Ginger Labs in establishing a password or other procedures for verifying that only designated employees of Customer have access to any administrative functions of the Services.
    3. User Account. Access to the Services may require a User to create an account with Ginger Labs, and (if and when required) Customer agrees to ensure each User shall create and maintain such an account and agree to be bound by any applicable terms and conditions that will be presented to Users during such registration process.
    4. Support Services. Subject to the terms hereof, Ginger Labs will use commercially reasonable efforts to provide to Customer reasonable technical support and maintenance of the Services through the “contact support” form available in the Services. The Services are subject to updates and modification from time to time at Ginger Labs’s sole discretion, for any purpose deemed appropriate by Ginger Labs, and some features, functionalities, workflows, or Third Party Materials may be changed or removed.
  3. PAYMENT; TAXES.
    1. Payment. Fees are due and payable as set forth in an applicable Order Form. Payment shall be made without any right of set-off or deduction. All payments made pursuant to this Agreement shall be made in U.S. dollars and are nonrefundable.
    2. Payment Processor. Ginger Labs uses a third-party payment processor (the “Payment Processor”) to bill Customer through a payment account linked to Customer’s account with Ginger Labs (Customer’s “Billing Account”). The processing of payments will be subject to the terms, conditions and privacy policies of the Payment Processor in addition to this Agreement. Currently, Ginger Labs uses Stripe, Inc. as its Payment Processor. Customer can access Stripe’s Terms of Service at https://stripe.com/us/checkout/legal and their Privacy Policy at https://stripe.com/us/privacy. Ginger Labs is not responsible for any error by, or other acts or omissions of, the Payment Processor. Customer agrees to pay Ginger Labs, through the Payment Processor, all fees at the prices then in effect for any use of the Services (the “Fees”) in accordance with the applicable payment terms, and Customer authorizes Ginger Labs, through the Payment Processor, to charge Customer’s chosen payment provider (the “Payment Method”). Customer agrees to make payment using that selected Payment Method. Ginger Labs reserves the right to correct any errors or mistakes that the Payment Processor makes even if it has already requested or received payment.
    3. Recurring Billing. Customer acknowledges that the Services have an initial and recurring payment feature and Customer accepts responsibility for all recurring charges prior to expiration or termination of the Subscription Term. Ginger Labs has the right to submit periodic charges (e.g., monthly, annually) without further authorization from Customer, until Customer terminates the Subscription Term pursuant to the terms of this Agreement.
    4. Audit. Customer shall establish and maintain complete and accurate records related to the access and use of the Services by Users, and any such other information as reasonably necessary for Ginger Labs to determine Customer’s usage and number of Users and verify compliance with the terms of this Agreement. Ginger Labs or its representative may request such records or conduct an audit on Customer and Users to confirm Customer’s compliance with the terms of this Agreement. If an audit reveals that Customer has underpaid for the actual number of Users or exceeded the permitted scope of Customer’s license grant during the period audited, then Ginger Labs will invoice Customer, and Customer will promptly pay Ginger Labs any underpaid Fees based on Ginger Labs’s price list in effect at the time the audit is completed (unless otherwise set forth in the Order Form). If the excess usage exceeds ten percent (10%) of the permitted usage, then Customer will also pay Ginger Labs’s reasonable costs of conducting the audit. Customer agrees to pay the additional fees without any right of set-off or deduction.
    5. Late Payment. Any amount not paid when required to be paid under this Agreement shall accrue interest at the rate of one and 1.5% per month (18% per annum) on the remaining amount required to be paid, or at the highest amount permitted by applicable law (if lower), such interest to accrue on a daily basis from the payable date until the remaining amount is paid.
    6. Taxes. All Fees are exclusive of applicable local, state, federal and international sales, value added, withholding and other taxes and duties of any kind. Customer shall be responsible for payment of such taxes and duties of any kind, provided however that Ginger Labs shall be responsible for payment of taxes levied or imposed based upon Ginger Labs’s net income. Without limitation, Customer will be responsible for all applicable sales taxes unless it first claims a sales tax exemption by providing Ginger Labs with an exemption certificate acceptable to the applicable authorities.
  4. TERM AND TERMINATION.
    1. Term. This Agreement shall commence on the Effective Date and continue for as long as Customer maintains an active subscription to the Services, unless terminated earlier pursuant to the terms hereof. Unless otherwise agreed upon by the parties, the Subscription Term and this Agreement shall automatically renew for a period equal in duration to the then expiring Subscription Term, unless either party gives at least sixty (60) days’ notice of non-renewal prior to the expiration of the then-current Subscription Term.
    2. Termination for Breach. Either party may terminate this Agreement immediately in the event the other party commits a material breach of this Agreement and fails to remedy that breach within thirty (30) days after receipt of notice of material breach.
    3. Suspension. Ginger Labs reserves the right to suspend Customer’s or any User’s access to or use of the Services: (i) for scheduled or emergency maintenance, or (ii) in the event Customer is in breach of this Agreement, including failure to pay any amounts due to Ginger Labs.
    4. Survival. Sections 1, 2.1.2, 2.1.3, 3, 4.4, 5, 6, 7, 8.1, 8.3, 9, 10 and 11 of this Agreement shall survive the termination of this Agreement for any reason.
  5. PROPRIETARY RIGHTS. Except for the licenses explicitly granted in this Agreement, all right, title and interests (including all intellectual property and proprietary rights of whatever nature) in and to the Services, including derivative works, are and shall remain the exclusive property of Ginger Labs (and/or its suppliers and licensors), and nothing in this Agreement should be construed as transferring any aspects of such rights to Customer or any third party. Ginger Labs (and its suppliers and licensors) reserve any and all rights not expressly granted in this Agreement. To the extent Customer or any User provides Ginger Labs with any feedback relating to the Services (including, without limitation, feedback related to usability, performance, interactivity, bug reports and test results) (“Feedback”), Ginger Labs shall own all right, title and interest in and to such Feedback (and Customer hereby makes and agrees to (and shall ensure applicable User to) make all assignments necessary to achieve such ownership).
  6. WARRANTY DISCLAIMER. THE SERVICES, THIRD PARTY MATERIALS, AND ANY SUBJECT MATTER HEREOF ARE PROVIDED TO CUSTOMER "AS IS," WITHOUT ANY WARRANTIES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, WARRANTIES CONCERNING THE INSTALLATION, USE OR PERFORMANCE. GINGER LABS AND ITS SUPPLIERS AND LICENSORS DISCLAIM ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. GINGER LABS AND ITS SUPPLIERS AND LICENSORS DO NOT WARRANT THAT THE PRODUCT OR SERVICES WILL MEET CUSTOMER'S REQUIREMENTS OR THAT THE OPERATION THEREOF WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ERRORS WILL BE CORRECTED.
  7. CONFIDENTIALITY. Each party (“Receiving Party”) agrees that all code, inventions, algorithms, know-how and ideas and all other business, technical and financial information it obtains from the other party (“Disclosing Party”) are the confidential property of the disclosing party (“Confidential Information” of the disclosing party). The Receiving Party shall hold in confidence and not use or disclose any Confidential Information of the Disclosing Party other than in connection with performing its obligations or exercising its rights pursuant to this Agreement. Confidential Information shall not include information that Receiving Party can document: (a) is generally available to the public other than through breach of this Agreement; (b) is rightfully disclosed to Receiving Party by a third party without restriction; (c) was in Receiving Party’s rightful possession without restriction prior to the disclosure to Receiving Party and was not obtained by Receiving Party either directly or indirectly from Disclosing Party; or (d) is independently developed by the Receiving Party without use of any Confidential Information of the Disclosing Party. Upon expiration or termination of this Agreement for any reason, each party will return all copies of all Confidential Information of the other party in its possession or control. Receiving Party may disclose Confidential Information as required by government or judicial order, provided Receiving Party gives Disclosing Party written notice prior to such disclosure and complies with any protective order (or equivalent) imposed on such disclosure. The terms of confidentiality under this Agreement shall not be construed to limit either party’s right to independently develop or acquire products without use of the other party’s confidential information.
  8. CONTENT AND DATA.
    1. Customer Content. Customer (and Users) hereby represents and warrants that they have all right, title and interest (including, without limitation, the related intellectual property rights of) to all data, information, content, and other materials provided by Customer and/or Users to the Services (the “Customer Content”). If Ginger Labs receives any notice or claim that any Customer Content, or activities hereunder with respect thereto, may infringe or violate rights of a third party or violate or breach any applicable laws, including, but not limited to, laws related to intellectual property and/or privacy (a “Claim”), Ginger Labs may (but is not required to) suspend such User’s license granted hereunder and Customer will indemnify Ginger Labs from all liability, damages, settlements, attorney fees and other costs and expenses in connection with any such Claim, as incurred.
    2. Data Processing Addendum. This Agreement incorporates, and Customer hereby agrees to, Ginger Labs’s Data Processing Addendum (“DPA”) if any User discloses, shares, submits, or makes available any personal data (as defined under applicable data privacy laws)via the Services or to Ginger Labs .
    3. Diagnostic Information. Customer acknowledges that the Services contain a diagnostic functionality that collects and processes de-identified technical and diagnostic related information about Users’ use of the Services (the “Diagnostic Information”). Ginger Labs may use and process such Diagnostic Information to support and troubleshoot issues, provide bug fixes, updates, and improve Ginger Labs’s products or services.
    4. Privacy Policy. Customer acknowledges, agrees to and is bound by, and shall ensure each User is bound by, the Terms of Service and Privacy Policy on Ginger Labs’s website (as they may be updated from time to time), except to the extent expressly and directly in conflict with the terms hereof.
  9. INDEMNIFICATION.
    1. Indemnity.
      1. Ginger Labs will defend, indemnify and hold Customer harmless against any third party claims, liabilities or expenses incurred (including reasonable attorneys’ fees), as well as amounts finally awarded in a settlement or a non-appealable judgement by a court (“Losses”), to the extent arising from any claim or allegation by a third party that the Services infringes or misappropriates a valid United States patent, copyright or trade secret right of a third party; provided that Customer gives Ginger Labs: (a) prompt written notice of any such claim or allegation; (b) sole control of the defense and settlement thereof; and (c) reasonable cooperation and assistance in such defense or settlement. If any portion of the Services becomes or, in Ginger Labs’s opinion, is likely to become, the subject of an injunction, Ginger Labs may, at its option, (i) procure for Customer the right to continue using such Services, (ii) replace or modify such Services so that it becomes non-infringing without substantially compromising its functionality, or, if (i) and (ii) are not commercially practicable, then (iii) terminate Customer’s license to the allegedly infringing Services and refund to Customer a prorated portion of the prepaid and unearned Fees for the infringing Services or components thereof. The foregoing states the entire liability of Ginger Labs with respect to infringement of patents, copyrights, trade secrets or other intellectual property rights.
      2. Customer will defend, indemnify and hold Ginger Labs harmless against any Losses arising from any such claim or allegation or in connection with (a) Customer’s use of the Services in violation of this Agreement, (b) Customer’s breach of this Agreement, including Customer’s breach of any covenant, representation, warranty, term, or condition set forth herein, and (c) Customer’s violation of any law or regulation or of any third party rights, including infringement, libel, misappropriation, or other violation of any third party’s intellectual property, privacy, or other legal rights.
    2. Exclusions. Ginger Labs’s foregoing indemnity obligations shall not apply to: (a) any portions of the Services modified by any party other than Ginger Labs, if the alleged infringement relates to such modification, (b) the combination or bundling of the Services with any products, processes or materials not provided by Ginger Labs where the alleged infringement relates to such combination, (c) use of a version of the Services other than the version that was current at the time of such use, (d) infringement or misappropriation of any proprietary right in which Customer has an interest, or (e) Third Party Materials.
  10. LIMITATION OF LIABILITY.
    1. Exclusions. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES, INCLUDING (WITHOUT LIMITATION) ANY LOST PROFIT, LOST DATA, OR BUSINESS INTERRUPTION, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR ANY COST OF PROCUREMENT OF SUBSTITUTE GOODS, SOFTWARE OR TECHNOLOGY.
    2. Aggregate Liability. OTHER THAN ANY BREACH OF SECTIONS 2.1 (SUBSCRIPTION OF SERVICES AND RESTRICTIONS), 5 (PROPRIETARY RIGHTS), OR 7 (CONFIDENTIALITY), EITHER PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR EITHER PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER, IN ANY EVENT, AND NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT, THE AGGREGATE LIABILITY OF EITHER PARTY FOR ANY REASON AND UPON ANY CAUSE OF ACTION UNDER THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAYABLE TO GINGER LABS (IN THE CASE OF CUSTOMER) OR ACTUALLY PAID TO GINGER LABS BY CUSTOMER (IN THE CASE OF GINGER LABS) DURING THE TWELVE (12) MONTHS PRIOR TO WHEN THE CAUSE OF ACTION AROSE. GINGER LABS WILL HAVE NO LIABILITY OR RESPONSIBILITY WITH RESPECT TO THE ACTS OR OMISSIONS OF ANY THIRD PARTIES IN CONNECTION WITH THE PRODUCT AND SERVICES.
  11. MISCELLANEOUS
    1. Severability. If any part of this Agreement is held by a court of competent jurisdiction to be illegal or unenforceable, the validity or enforceability of the remainder of this Agreement shall not be affected and such provision shall be deemed modified to the minimum extent necessary to make such provision consistent with applicable law and, in its modified form, such provision shall then be enforceable and enforced.
    2. Assignment. Customer may not assign this Agreement or its rights or obligations under this Agreement to any person or party, whether by operation of law or otherwise, without Ginger Labs’s prior consent. Any attempt by Customer to assign this Agreement without Ginger Labs’s prior consent, where such consent is required, shall be null and void. Subject to the foregoing conditions, this Agreement shall be binding upon and inure to the benefit of each party and its respective successors and assigns. There are no intended third party beneficiaries of this Agreement.
    3. No Waiver; Limitations. Failure by either party to exercise any right or remedy under this Agreement does not signify acceptance of the event giving rise to such right or remedy. To the extent permitted by applicable law, no action, regardless of form, arising out of this Agreement may be brought by Customer more than one (1) year after the cause of action has accrued.
    4. Governing Law. This Agreement shall be governed by the laws of the State of California without regard to the conflict of laws provisions thereof. In no event shall either the United Nations Convention on Contracts for the International Sale of Goods or any adopted version of the Uniform Computer Information Transactions Act apply to, or govern, this Agreement. In the event either party initiates an action in connection with this Agreement or any other dispute between the parties, the exclusive venue and jurisdiction of such action shall be in the state and federal courts in San Francisco, California. The prevailing party in any action to enforce this Agreement shall be entitled to recover reasonable attorneys' fees and costs.
    5. Notices. Unless otherwise agreed to by the parties, any notice, authorization, or consent (“Notice”) required or permitted to be given or delivered under this Agreement shall be in writing, in English and addressed and delivered to Ginger Labs at the address specified on the Order Form or to Customer at the contact information specified on the Order Form. Notice shall be deemed to have been received by a party, and shall be effective: (a) on the fifth business day after which such Notice is deposited prepaid in the local postal system; (b) on the day received, if sent with a reputable, expedited overnight or international courier or hand delivered or (c) one business day after being sent electronically with a confirmed delivery receipt. Either party may change its address for receipt of Notice purposes upon issuance of Notice thereof in accordance with this Section.
    6. Export Law Assurances. Customer acknowledges that the Services may be subject to export and import control laws, and agrees to comply fully with those laws in connection with the Services. Customer agrees that the Services is not being and will not be acquired for, shipped, transferred, or re-exported, directly or indirectly, to proscribed or embargoed countries or their nationals, nor will it be used for: nuclear activities, chemical or biological weapons, or missile projects unless authorized by the U.S. government.
    7. U.S. Government Restricted Rights. If the Services, Services, any software, documentation, or anything related thereto or any direct product thereof, is being acquired by or on behalf of the U.S. Government or by a U.S. Government prime contractor or subcontractor (at any tier), in accordance with 48 C.F.R. 227.7202-4 (for Department of Defense (“DOD”) acquisitions) and 48 C.F.R. 2.101 and 12.212 (for non-DOD acquisitions), the government's rights in such Services, Service, software, and any documentation, including its rights to use, modify, reproduce, release, perform, display or disclose software or any documentation, will be subject in all respects to the license rights and restrictions provided in this Agreement. The Services, Service, software, and any documentation are provided with “Restricted Rights” (as defined in FAR section 52.227-19). Use, duplication or disclosure by the United States Government is subject to the restrictions set forth in Federal Acquisition Regulation (“FAR”) FAR 12.212 and DFAR 227.7202. No other FAR, or Defense Federal Acquisition Regulation (“DFAR”) or any other governmental or other terms apply unless explicitly set forth on the Order Form.
    8. Force Majeure. Except for performance of a payment obligation, neither party will be liable to the other by reason of any failure in performance of this Agreement if the failure arises out of the unavailability of communications facilities or energy sources, acts of God, epidemics, acts of the other party, acts of governmental authority, fires, strikes, delays in transportation, riots, terrorism, war, or any causes beyond the reasonable control of that party.
    9. Remedies. Except as specifically provided otherwise herein, each right and remedy in this Agreement is in addition to any other right or remedy, at law or in equity. Each party agrees that, in the event of any breach or threatened breach of Section 5 (Proprietary Rights) or 7 (Confidentiality), the non-breaching party will suffer irreparable damage for which it will have no adequate remedy at law. Accordingly, the non-breaching party shall be entitled to injunctive and other equitable remedies to prevent or restrain such breach or threatened breach, without the necessity of posting any bond.
    10. Endorsement. During the Term of this Agreement, Customer agrees to be a reference for Ginger Labs and participate in a Ginger Labs case study, and participate in a press release regarding Customer’s subscription to the Services. Ginger Labs is permitted to disclose that Customer is one of its customers to any third-party at its sole discretion.
    11. Entire Agreement. This Agreement together with all applicable Order Forms comprise the entire agreement between the parties regarding the subject matter hereof and supersedes and merges all prior proposals, understandings and all other agreements, oral and written, between the parties relating to the subject matter of this Agreement. Ginger Labs may amend this Agreement, including the DPA, from time to time, in which case the new Agreement will supersede prior versions. Ginger Labs will use commercially reasonable efforts to provide advance notice to Customer of any material amendment. If Customer does not agree to any amendment, Customer may opt out of the automatic renewal prior to the expiration of the then-current Subscription Term. Customer’s continued use of the Services following the effective date of any such amendment constitute Customer’s agreement to any such amendment. Ginger Labs’s acceptance of any document submitted by Customer to Ginger Labs shall not be construed as an acceptance of provisions which are in any way in conflict or inconsistent with, or in addition to, this Agreement, unless such terms are separately and specifically accepted in writing by an authorized representative of Ginger Labs.